Citation Nr: 0837702
Decision Date: 10/31/08 Archive Date: 11/10/08
DOCKET NO. 06-02 910 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for peripheral
neuropathy of the upper extremities, including due to
service-connected type II diabetes mellitus.
2. Entitlement to an initial compensable disability rating
for erectile dysfunction.
3. Entitlement to an initial disability rating higher than
20 percent for the type II diabetes mellitus.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
William J. Jefferson III, Counsel
INTRODUCTION
The veteran served on active duty from November 1970 to April
1972.
In October 2007, the veteran had a total of six claims on
appeal to the Board of Veterans' Appeals (Board). The Board
remanded all of his claims to the Regional Office (RO) via
the Appeals Management Center (AMC) for further development
and consideration.
A February 2008 AMC decision, on remand, increased the rating
for the veteran's bilateral diabetic retinopathy from 0 to 20
percent retroactively effective from November 13, 2007. The
AMC also increased the rating for his coronary artery
disease, status post bypass graft, from 10 to 60 percent
retroactively effective from November 28, 2007. As well, the
AMC granted service connection for diabetic nephropathy and,
effective February 7, 2007, rated this disability
concurrently with his already service-connected hypertension.
And lastly, the AMC increased the ratings for the bilateral
lower extremity peripheral neuropathy from 10 to 20 percent
retroactively effective as of January 12, 2007.
The Board has since contacted the veteran by letter in
October 2008 to clarify how many of his original claims
remain at issue on appeal. And when responding later in
October 2008 he indicated that his only remaining claims are
for service connection for peripheral neuropathy in his upper
extremities - including secondary to his already service-
connected type II diabetes mellitus, and for higher ratings
for the type II diabetes mellitus and his associated erectile
dysfunction (ED). He has withdrawn all other claims.
38 C.F.R. § 20.204 (2008).
The Board, unfortunately, must again remand the claim for
service connection for bilateral upper extremity peripheral
neuropathy for still further development and consideration.
The remand will again be via the AMC. However, the Board
is going ahead and deciding the claims for higher disability
ratings for the type II diabetes mellitus and ED.
FINDINGS OF FACT
1. The veteran's erectile disability is manifested by sexual
dysfunction, but he does not have physical deformity of his
penis.
2. The veteran's diabetes mellitus requires insulin and diet
restrictions, but not regulation of his activities.
CONCLUSIONS OF LAW
1. The criteria are not met for an initial compensable
rating for erectile dysfunction. 38 U.S.C.A. § 1155 (West
2002); 38 C.F.R. §§ 4.31, 4.115, Diagnostic Code 7522 (2007).
2. The criteria also are not met for an initial rating
higher than 20 percent for type II diabetes mellitus. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119,
Diagnostic Code 7913 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Duties to Notify and Assist
VA has complied with the duty-to-notify provisions of the
Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183, 197 (2002). In February 2004 and June 2007
letters, as well as in the January 2006 statement of the case
(SOC), the veteran was: (1) informed of the information and
evidence not of record that was necessary to substantiate his
claims; (2) informed of the information and evidence that VA
would obtain and assist him in obtaining; and (3) informed of
the information and evidence he was expected to provide."
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II). The June 2007 letter also apprised him of the
disability rating and effective date elements of his claims.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).
And of equal or even greater significance, although he did
not receive some of that required VCAA notice prior to the
initial adjudication of his claims, since providing that
necessary notice, the AMC has gone back and readjudicated his
claims in the February 2008 supplemental SOC (SSOC),
including considering any additional evidence received in
response to that additional notice. See Mayfield v.
Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV)
and Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)
(indicating that, as a matter of law, the provision of
adequate VCAA notice prior to a readjudication - including
in a SOC or SSOC, "cures" any timing problem associated with
inadequate notice or the lack of notice prior to an initial
adjudication).
If there is any notice deficiency, the Board finds that the
presumption of prejudice on VA's part has been rebutted: (1)
based on the communications sent to the veteran over the
course of this appeal, he clearly has actual knowledge of the
evidence he is required to submit; and (2) based on his
contentions as well as the communications provided to him by
VA, it is reasonable to expect that he understands what is
needed to prevail. See Sanders v. Nicholson, 487 F.3d 881
(Fed. Cir. 2007). See, too, Overton v. Nicholson, 20 Vet.
App. 427, 435 (2006) (finding the Board had erred by relying
on various post-decisional documents for concluding adequate
38 U.S.C.A. § 5103(a) notice had been provided to the
appellant, the Court nonetheless determined the evidence
established the veteran was afforded a meaningful opportunity
to participate effectively in the adjudication of his claims,
and therefore found the error harmless).
The veteran has been represented throughout this appeal by a
veteran's service organization, The American Legion, which
presumably understands the requirements for him to receive
higher disability ratings for his ED and type II diabetes
mellitus. Indeed, he argued during his hearing as to why he
believes these conditions are more severe than is
contemplated by their current ratings.
VA also fulfilled its duty to assist by obtaining all
relevant evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159. All identified VA medical records have been obtained.
The RO and AMC, including as a result of the Board's remand,
have attempted to obtain all other relevant medical records
the veteran has identified. The Board's October 2007 remand
was also to afford the veteran VA medical examinations to
assess the severity of his disabilities, the determinative
issue. See Caffrey v. Brown, 6 Vet. App. 377 (1994). The
Board therefore is satisfied that the duty to assist has been
met. 38 U.S.C.A. § 5103A.
Whether the Veteran is Entitled to Higher Evaluations for his
ED and Type II Diabetes Mellitus
Disability evaluations are determined by the application of a
schedule of ratings, which represent, as far as can be
practically determined, the average impairment of earning
capacity resulting from disability. 38 U.S.C.A. § 1155; 38
C.F.R. § 4.1.
And since, as mentioned, the veteran has appealed the ratings
he initially received following the grant of service
connection for his ED and type II diabetes mellitus, the
Board must consider whether his ratings should be "staged"
to compensate him for times since filing these claims when
these disabilities may have been more severe than at others.
See Fenderson v. West, 12 Vet. App. 119, 125-127 (1999).
I. ED
The RO has assigned an initial 0 percent (i.e.,
noncompensable) rating for this disability under 38 C.F.R. §
4.115b, DC 7522. The only rating available under this DC is
20 percent, and it requires deformity of the penis with loss
of erectile power. Use of the word "with" in this DC means
both factors are required to receive this rating. See Melson
v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive
"and" in a statutory provision meant that all of the
conditions listed in the provision must be met); compare
Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive
"or" requirement must be met in order for an increased rating
to be assigned).
In every instance where the schedule does not provide a zero
percent evaluation for a DC, a zero percent evaluation shall
be assigned when the requirements for a compensable
evaluation are not met. 38 C.F.R. § 4.31.
VA clinical records from at least 2004 show the veteran has a
history of ED, with difficulty or inability to maintain an
erection. During his most recent VA compensation examination
in November 2007, he reported continued inability to perform
intercourse or ejaculate or obtain an erection. Examination
of his genitals, however, revealed no physical abnormalities.
The diagnosis was ED most likely secondary to (i.e., a
complication of) his service-connected diabetes.
There is no disputing the veteran has sexual dysfunction
associated with his ED, including the required loss of
erectile power. But, as mentioned, for a 20 percent rating
under DC 7522 there also must be "physical" deformity of
his penis, not just deformity in the more general sense that
it does not work as it once did. Also keep in mind that he
is receiving special monthly compensation (SMC)
under 38 U.S.C.A. § 1114, subsection (k), and 38 C.F.R.
§ 3.350(a), on account of loss of use of a creative organ.
So to the extent he has loss of erectile power, he already is
being duly compensated for that.
Therefore, in the absence of any medical evidence of penis
deformity the Board must conclude that the criteria for a
compensable, 20 percent, rating under DC 7522 are not met.
And as the preponderance of the evidence is against this
claim, the benefit of the doubt doctrine is inapplicable.
38 C.F.R. § 4.3.
II. Type II Diabetes Mellitus
The RO has initially evaluated this condition as 20-percent
disabling under 38 C.F.R. § 4.119, DC 7913. Under this code,
a 20 percent evaluation is assigned for diabetes mellitus
requiring insulin and a restricted diet, or an oral
hypoglycemic agent and a restricted diet. A higher 40
percent evaluation requires insulin, a restricted diet, and
regulation of activities. And even higher 60 percent rating
requires insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring one or two hospitalizations per year or
twice a month visits to a diabetic care provider, plus
complications that would not be compensable if evaluated
separately. The highest possible 100 percent rating requires
more than one daily injection of insulin, restricted diet,
and regulation of activities (avoidance of strenuous
occupational and recreational activities) with episodes of
ketoacidosis or hypoglycemic reactions requiring at least
three hospitalizations per year or weekly visits to a
diabetic care provider, plus either progressive loss of
weight and strength or complications that would be
compensable if separately evaluated.
VA clinical records show the veteran has a reported long
history of diabetes mellitus, treated with insulin during the
last several years. During a VA diabetes medical examination
in April 2004, it was reported that he injected insulin for
diabetes control. It was stated that he denied episodes of
ketoacidosis and that he had had three episodes of
hypoglycemia in the past year. He reportedly avoided foods
with high concentrations of sugar. He had not gained or lost
any weight in the past year, and he denied any restrictions
of his activities due to his diabetes.
He reportedly saw his diabetic care provider twice a year.
The diagnosis was diabetes mellitus, type 2, diagnosed in
1987.
VA clinical records in February 2007 report the veteran had
hypoglycemia symptoms and that his diabetes was uncontrolled.
In an October 2007 VA clinical record it was reported that he
had much worsening diabetes mellitus control.
During his VA compensation examination in November 2007, it
was reported that the veteran had symptoms of hyperglycemia
one time per week, and hypoglycemic reactions when working
due to increased activity. He denied a history of
ketoacidosis or hospitalizations for ketoacidosis, or hypo or
hypoglycemia. He reportedly was treated by a dietician and
was on carbohydrate control regimen for his diabetes. His
weight had been relatively stable, with a fluctuation of only
10 pounds since his initial diagnosis. He did not avoid
strenuous activity to prevent hypoglycemic reactions, and he
did not perform any significant activity. He reported loss
of strength and decreased energy due to his diabetes.
His treatment for diabetes was with oral hypoglycemics and
insulin. It was reported that he was seen by his diabetic
care provider every 2 to 3 months. The diagnosis was
diabetes 2, veteran is insulin dependent.
This evidence shows the veteran is insulin-dependent for
treatment of his diabetes, and that his diet is restricted
for carbohydrate control, and that he is followed by a
dietician. But of equal or even greater significance, there
is no indication his diabetes mellitus requires any
particular regulation of his activities, as even he
personally acknowledged that he does not avoid strenuous
activities, nor is there any indication from the record that
his activities are medically restricted. He has not been
hospitalized due to ketoacidosis or hypoglycemic reactions,
and he is seen every to three months by his doctor. So while
he is insulin dependent and has a restricted diet, his
diabetes mellitus does not result in any medical regulation
of his activities as to warrant a higher 40 percent rating.
The preponderance of the evidence is against his claim, so
there is no reasonable doubt to resolve in his favor, and his
claim for a higher rating must be denied. See 38 U.S.C.A. §
5107; 38 C.F.R. § 4.3; Gilbert, supra.
ORDER
The claim for an initial compensable disability rating for ED
is denied.
The claim for an initial disability rating higher than 20
percent for type II diabetes mellitus also is denied.
REMAND
When remanding this case in October 2007, the Board indicated
the veteran should be afforded a VA medical examination to
determine whether he has peripheral neuropathy in his upper
extremities - and if he does, to determine whether it is
attributable to his military service, including the result of
his already service-connected type II diabetes mellitus.
VA outpatient clinical records from 2006 and 2007 show the
veteran received ongoing treatment for pain and other
symptoms referable to his upper extremities. Of particular
note, a record dated in February 2007 indicates he had
neuropathic bilateral foot and hand pain due to his diabetes.
And just three months later, in May 2007, he complained that
he had recently lost his job because of this chronic
neuropathic pain in his hands and feet. Moreover, and
electromyograph (EMG) in August 2007 confirmed he had
bilateral ulnar nerve focal neuropathy at the elbow level
(right moderate to severe, and left moderate). It was also
indicated he had bilateral median nerve focal neuropathy in
his wrists (right moderate and left mild), albeit without EMG
evidence of neuropathy, and that normal bilateral superficial
radial sensory nerve conduction findings were noted and
suggestive of relative lack of diffuse diabetic neuropatic
involvement of his upper extremities (UE's) at that time.
And after subsequently being examined by VA in November 2007
- as the Board had requested in its remand, it was indicated
the veteran was not symptomatic for diabetic neuropathy to
his hands or upper extremities.
So there is an apparent conflict between the VA outpatient
treatment records and the results of that November 2007 VA
compensation examination. The Board therefore finds that
additional medical comment is needed to fairly decide this
remaining claim for upper extremity peripheral neuropathy.
See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38
U.S.C.A. § 5103A(d); and 38 C.F.R. § 3.159(c)(4).
Accordingly, this claim is REMANDED for the following
development and consideration:
1. Schedule the veteran for a VA
neurological examination, preferably by a
physician with appropriate expertise, to
determine whether the veteran has
peripheral neuropathy in his upper
extremities. If he does, then the
examiner should indicate whether it is at
least as likely as not (50 percent or
greater probability) this upper extremity
peripheral neuropathy is a complication of
the already service-connected
type II diabetes mellitus, also bearing in
mind the veteran already has established
his entitlement to service connection for
lower extremity peripheral neuropathy as a
complication of his diabetes.
Have the designated examiner review the
claims file for the pertinent medical and
other history, including a complete copy
of this remand. All necessary diagnostic
testing and evaluation should be
performed. The examiner should discuss
the rationale of the opinion, whether
favorable or unfavorable.
2. Then readjudicate the claim for
service connection for bilateral upper
extremity peripheral neuropathy in light
of this additional evidence. If this
claim is not granted to the veteran's
satisfaction, send him and his
representative a supplemental statement of
the case and give them an opportunity to
respond to it before returning this
remaining claim to the Board for further
appellate consideration.
The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs